14 C.M.A. 393 | United States Court of Military Appeals | 1964
Opinion of the Court
We granted accused’s petition for review of his conviction of voluntary manslaughter and approved sentence to confinement at hard labor for twelve months, forfeitures for a like period, and reduction to the lowest enlisted grade. The issue involved the propriety of the law officer’s instruction to the court concerning the effect of immediate detection and certain apprehension in determining whether accused could adhere to the right. The United States and the accused have filed a joint pleading in which it is admitted that the instruction is incorrect and reversal of the decision of the board of review is prayed. See United States v Jensen, 14 USCMA 353, 34 CMR 133.
Where the evidence places in issue an accused’s ability to adhere to the right, an instruction according controlling effect to the concept herein 'discussed is prejudicially erroneous. United States v Jensen, supra. Accordingly, the prayer of the joint pleading is well taken.
The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army. A rehearing may be ordered.